Mens Divorce Attorney, Cordell & Cordell
My previous divorce article discussed if child support collection practices are fair.
What you’ll find is that divorced dads who fall behind on child support payments are thrown into a vicious cycle of collection methods that never seem to end.
To avoid that cruel cycle of interest, penalty, refund intercept, hearing, incarceration, and then back again, here is what can, and should, be done.
Review and Modification – If your income is reduced, request a review or modification of child support as soon as possible. A “review” refers to an administrative adjustment of the support order without a hearing to determine whether there is a sufficient change in circumstances to warrant a support modification.
For most states participating in the Title IV-D federal program, a parent may request this review once every three years. A “modification” refers to a change following a hearing at which you present evidence of a sufficient change and how the support obligation should also change. Be cautious, however, because the other parent’s income may have also changed – and you could end up owing more support.
You should make your request as soon as practicable after your income changes because, in most states, you can only “back date” your support obligation and erase arrearages, absent the other parent’s agreement, to the date you filed your request.
(Correct) Direct Pay – Do not pay child support directly to your ex-spouse unless your support order allows you to do so!
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In most states, any direct payments are conclusively treated as gifts, and you will still owe the support you paid directly. Even if you have proof of payment, and in many states even if the other parent acknowledges receiving the payment, you will still be treated as behind in the eyes of the state. For states that do collect receipts, you can expect to take a long time at the courthouse or the support agency to correct your account.
That being said, if you and the other parent can get along, or if you can arrange for automatic deposits from your pay, you might consider revising your order to allow for direct payments. In many states, you pay an administrative fee to make payments through the state, and you can save yourself money by making them directly.
Nunc Pro Tunc Orders – If you notice a clerical error in your child support order – for example, maybe the “2” in “$250 each month” became a “5” in the state’s order – contact the courthouse or support agency to request a nunc pro tunc order.
These are orders “from the beginning,” and divorce lawyers use them to correct clerical errors so that the court’s order reflects the court’s and/or the parents’ intent at the time the order was issued.
Any mistakes made while the incorrect order was in existence are automatically corrected. This means that extra $300 each month in our example that went unpaid is automatically erased from the first date support was due.
Divorce lawyers avoid the problems with back-dating support orders for reviews and modification (see above) this way, provided you can point to a true clerical error and not your own error for not filing for a review or modification soon enough.
Abatement – If you regularly exercise more parenting time than your current child support order allows, you should consider requesting a modification of that order and/or an abatement of support while your children are under your case.
This is because most child support orders are based, in part, on the amount of time you spend with your children. You are supposed to support them when they are not with you, so if you are supporting them and they are with you, you are effectively paying twice.
Many states require a significant change in the children’s lives to modify an order, so be sure you consult with a mens divorce attorney before taking this action.
Arrears Discharge – If you have a forgiving ex, ask you ex to forgive some of the arrearages owed to her.
In many states, parents can forgive all or a portion of child support owed them directly for their child, even if the state cannot forgive the support owed to the state as reimbursement for government benefits. This may make it easier for you to work – without a huge support debt appearing on your credit report, for example.
Some states are even suspending interest and penalty charges for parents who make good faith payments toward their support arrearages. It is worth looking into if your arrearage is insurmountable.
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The worst thing you can do is keep working with the expectation that some day you will be able to pay. Chances are you won’t – or, if you do, you will pay more than you would have had you taken some of these steps.
Jennifer M. Paine is a mens divorce attorney in the Detroit, Michigan office of Cordell & Cordell. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims.
Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.